966 F.

2d 1056
60 USLW 2790, 22 Fed.R.Serv.3d 736,
75 Ed. Law Rep. 1031

Imogene C. BARNES, Plaintiff-Appellee, Cross-Appellant (905644),

v.
Lauro F. CAVAZOS, Secretary of the United States
Department
of Education, Defendant-Appellant (90-5470/5874),
Cross-Appellee,
Board of Education of Jefferson County, Kentucky; Laken
Cosby, Jr.; John P. Heyburn; Jim Hearn; Sherry K. Jelsma;
Robert J. Schmitt; Paul Saho; United States Department of
Education; Carol A. Haddad; Allen D. Rose; State Board of
Elementary and Secondary Education of the Commonwealth of
Kentucky; John Brock; L. Roger Wells; Robert Mead, CPA;
Joseph McPherson; Stephanie Palaisa; D.K. Dumeyer, Sr.;
Dr. Thomas C. Kelly, Defendants-Appellants (90-5531), CrossAppellees,
St. Aloysius School; Christ the King School; St. Columba
School; Community Catholic School; St. Denis School; St.
George School; Guardian Angel School; Holy Family School;
Holy Name School; St. Ignatius School; St. Jerome School;
St. Joseph School; Our Lady of Consolation School; Our
Lady of Mount Carmel School; Resurrection School; St.
Timothy School; St. Vincent DePaul School; West End
Catholic School; Commonwealth of Kentucky, DefendantsAppellees,
Marlene Clark; Helen Henning; Bobbie Holloway; Sherryn
Roberts; Patricia Smith; Betty Thurman; Steve and
Jennifer Hueston; Mary Leitner; Rose Massey; Robin Smith,
Intervening Defendants-Appellants (90-5531), Cross-Appellees.
Nos. 90-5470, 90-5531, 90-5644 and 90-5874.

United States Court of Appeals,

Sixth Circuit.
Argued Oct. 10, 1990.
Decided June 5, 1992.

Lee Boothby (argued and briefed), Berrien Springs, Mich., Nicholas

Baker, Louisville, Ky., for plaintiff-appellee cross-appellant Barnes.
T. Jeremy Gunn (briefed), Washington, D.C., for amici curiae Nat.
Coalition of Public Educ. and Religious Liberty (Nat. Pearl), Nat. Ass'n of
Elementary School Principals, Nat. School Boards Ass'n, Nat. Ass'n of
Secondary Schools Principals.
Terry Cushing, Asst. U.S. Atty., Office of U.S. Atty., Louisville, Ky.,
Michael Jay Singer, Paul W. Bridenhagen, Theodore C. Hirt, Howard S.
Scher (argued and briefed), U.S. Dept. of Justice, Appellate Staff, Civ.
Div., Washington, D.C., for defendant-appellant cross-appellee Cavazos.
Marc Stern (briefed), New York City, for amicus curiae American Jewish
Congress.
Francis J. Mellen, Jr. (briefed), Frank F. Chuppe, Wyatt, Tarrant &
Combs, Louisville, Ky., for defendants-appellants cross-appellees Bd. of
Educ. of Jefferson County, Ky., Laken Cosby, Jr., John P. Heyburn, Jim
Hearn, Sherry K. Jelsma, Robert J. Schmitt, Michael W. Wooden, Carol
A. Haddad and Allen D. Rose and defendants-appellants cross-appellees
Joseph McPherson and Stephanie Palaisa.
V. Lynne Schroering (briefed), D. Brent Irvin, Asst. Atty. Gen., Office of
Atty. Gen. of Ky., Frankfort, Ky., for defendants-appellants crossappellees State Bd. of Elementary and Secondary Educ. of Com. of Ky.,
John Brock, L. Rogers Wells, and Robert Mead, CPA.
Charles J. Cronan, IV, Stites & Harbison, Louisville, Ky., Kevin J.
Hasson, Charles H. Wilson, Laura P. Masurovsky, Kevin T. Baine (argued
and briefed), Williams & Connolly, Washington, D.C., for intervenorsappellants cross-appellees Marlene Clark, Helen Henning, Bobbie
Holloway, Sherryn Roberts, Patricia Smith, Betty Thurman, Steve and
Jennifer Hueston, Mary Leitner, Rose Massey and Robin Smith.
Frank W. Burke, Sr. (briefed), Burke & Burke, Louisville, Ky., for

defendants-appellants cross-appellees D.K. Dumeyer, Sr. and Thomas C.

Kelly, Dr., and defendants-appellees St. Aloysius School, Christ the King
School, St. Columba School, Community Catholic School, St. Denis
School, St. George School, Guardian Angel School, Holy Family School,
Holy Name School, St. Ignatius School, St. Jerome School, St. Joseph
School, Our Lady of Consolation School, Our Lady of Mount Carmel
School, Resurrection School, St. Vincent DePaul School and West End
Catholic School.
Before: MARTIN and NORRIS, Circuit Judges, and WISEMAN, Chief
District Judge.*
PER CURIAM.

The district court determined that the Board of Education of Jefferson County,
Kentucky, violated the Establishment Clause of the First Amendment by
allocating remedial education funds in disproportionate amounts to parochial
students as opposed to public students.1 The funds were granted to the Board
pursuant to Chapter 1 of the Elementary and Secondary Education Act. For the
reasons given below, we reverse the district court's decision. We also dismiss
plaintiff's cross-appeal because we find it was not timely filed and, therefore,
we shall not consider it on the merits.

I.
2

Chapter 1 of the Elementary and Secondary Education Act authorizes federal

financial assistance to local educational agencies for the purpose of providing
remedial educational services to educationally-deprived children. The Act is
intended to cover those children who come from low-income families residing
in low-income areas, regardless of whether or not the child is a public or private
school student.2 Chapter 1 services are usually administered by local
educational agencies ["LEAs"] and the LEAs are supervised by a state
educational agency ["SEA"].

An LEA applying for a Chapter 1 grant must provide assurance to the Secretary
of the United States Department of Education that it will "make provision for
services to educationally deprived children attending private ... schools." 20
U.S.C. 2722(c)(2). In addition, "[e]xpenditures for educational services and
arrangements pursuant to this section for educationally deprived children in
private schools shall be equal ... to expenditures for children enrolled in the
public schools of the [LEA]." 20 U.S.C. 2727(a).

Imogene Barnes, a taxpayer, filed suit against the defendants in 1980

challenging the constitutionality of sending public school teachers to parochial
schools in order to deliver Chapter 1 instruction to students enrolled in those
schools. The Supreme Court resolved this issue in Aguilar v. Felton, 473 U.S.
402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985). In Felton, the Court held that New
York City's practice of using Chapter 1 funds to pay the salaries of public
employees teaching on the premises of parochial schools violated the
Establishment Clause. Following the issuance of Felton, Barnes moved for
summary judgment. The defendants responded to Barnes' motion by asking the
district court to grant them time to implement a new program consistent with
Felton. The district court did not grant or deny this request; nor did the district
court rule on Barnes' motion for summary judgment.

After the Supreme Court's decision in Felton, the Secretary of the United States
Department of Education issued a document entitled "Guidance On Aguilar v.
Felton," which instructed LEAs to deduct the additional cost of providing
Chapter 1 services to private schools from the LEA's total Chapter 1 allocation
prior to apportioning funds between public and private school students.3 The
method proposed by the Secretary, which is known as the "off-the-top" cost
allocation method, was intended to meet the statutory obligation of providing
Chapter 1 services on an equitable basis to both public and private school
children. In a later publication, the Secretary approved the use of mobile
classrooms for delivering Chapter 1 services to private school students, if the
mobile units were parked on public property and the funding for the mobile
units came off-the-top.

In response to Felton and the Secretary's publications, the Board began to lease
mobile vans in order to provide Chapter 1 instruction to private school students
as well as public school students. Each mobile van could accommodate the
administration of educational services to 8 to 10 students. To pay for the vans,
the Board used the off-the-top method of allocation, thus deducting the cost of
the vans from the total Chapter 1 grant before apportioning the remaining funds
for instructional services between public and parochial students. These
administrative expenses associated with insuring Chapter 1 services reach
qualified private school students without violating the Constitution are referred
to as Felton costs.

During the 1988-89 school year, the cost of using mobile vans in Jefferson
County was $194,181. During this school year, 11,700 students participated in
the Chapter 1 program and, of this number, 510 were private school students.
Approximately $600 was spent on instructional services per Chapter 1 student.
This $600 figure does not include administrative expenses, such as the cost of

vans, which were deducted off-the-top prior to allocating Chapter 1 monies

between private and parochial students. Although the exact amount of the total
Chapter 1 grant for the 1988-1989 year is unavailable, based on the abovedelineated information we estimate the grant was approximately $7,214,181.4
8

At the hearing before the district court, Dr. Thomas Fagan of the Department of
Education testified about the off-the-top method. Applying the off-the-top
method, Fagan explained that the per capita cost of the vans, when averaged
over the total number of students governed by the Chapter 1 plan, was only $17
per student; the per capita expenditure for instructional services was
approximately $600 per student. However, if the off-the-top method was not
used--i.e., the Chapter 1 funds were divided up between public and private
students in a per capita fashion and, thereafter, the cost of the vans was paid for
only with the private students' portion of the funds--quite a different result was
reached. Under the latter method, $617 was available for instructional services
for each public school student, while only $236 remained available for
instructional services for each private school student.

In January 1988, Barnes filed an amended complaint challenging the

constitutionality of both the mobile van program and the off-the-top method of
allocating funds. Barnes also challenged the practice of sending public school
teachers onto the premises of religiously-affiliated institutions for neglected and
delinquent children.

10

The district court entered judgment on February 21, 1990. The court held that
the off-the-top allocation formula violated the Establishment Clause because it
gave disproportionately more funds to parochial school children than to public
school children. The district court held, however, that apart from the method of
funding, both the mobile van program and the delivery of Chapter 1
instructional services to institutions for neglected and delinquent children
passed constitutional muster.

11

The defendants filed their notice of appeal on March 23, 1990. On April 30,
1990, Barnes filed a notice of appeal to contest the district court's rulings
concerning the constitutionality of the use of mobile vans and the delivery of
Chapter 1 services to institutions for neglected and delinquent children. Barnes'
notice of appeal, which was due on April 23, 1990, was a week late. See
Fed.R.App.P. 4(a)(1). In moving for an extension of time for filing, Barnes'
counsel stated that he had miscalculated the time on which the appeal was due
and sought to extend the time for filing the notice of appeal. The district court
granted his motion, reasoning that the error was "excusable neglect" under
Fed.R.App.P. 4(a)(5). This Rule states that "[t]hat district court, upon a

showing of excusable neglect ..., may extend the time for filing a notice of
appeal upon motion."
12

Defendants contend that we need not address the issues raised by Barnes' crossappeal because notice of her appeal was not filed within the time required by
the federal rules and a late filing under these circumstances cannot be
considered excusable neglect. As discussed below, we agree that the district
court erred in granting the extension and so we dismiss Barnes' cross-appeal.

13

The standard for reviewing a district court's order granting an extension of time
for filing a notice of appeal is abuse of discretion. Marsh v. Richardson, 873
F.2d 129, 130 (6th Cir.1989). In Marsh, we found a district court abused its
discretion when it granted an extension of time to an attorney who explained
that the cause of his delay in filing was that he was unaware of the district
court's decision, even though his office had received notice of it. Id. The
attorney in Marsh also attempted to justify his mistake on the grounds that he
compounded the initial errors by then incorrectly calculating the time period for
filing. Id. at 130. In reversing the court's order, we noted that "[i]t is well
settled that leave to file an untimely notice of appeal is to be granted only in
unique or extraordinary circumstances," and that "the excusable neglect
standard has consistently been held to be 'strict,' and can be met only in
extraordinary cases." Id. We concluded that in light of the attorney's serious
lack of diligence and that he essentially committed not simply one mistake but
three, the district court erred in granting an extension. Id. at 130-131.

14

Barnes' counsel argues that the district court did not abuse its discretion
because, unlike the facts in Marsh, he made only one mistake, not three. He
argues his tardy notice of appeal is accompanied by a motion to extend the
filing time and maintains that this case is more analogous to the circumstances
underlying the Third Circuit's decision in Consolidated Freightways Corp. of
Delaware v. Larson, 827 F.2d 916 (3d Cir.1987). In Consolidated Freightways,
a five-day delay was occasioned by the appellant mailing his notice of appeal to
the Eastern District of Pennsylvania rather than the Middle District. Id. at 917.
The court of appeals reversed the district court's denial of the appellant's motion
to extend the time for filing, reasoning that "excusable neglect" encompassed
more than acts, omissions, or events beyond the control of the appellant or the
appellant's counsel. Id. at 919. The court stated:

15 court interprets Rule 4(a)(5) to require a finding of excusable neglect in those

This
instances where the court, after weighing the relevant considerations is satisfied that
counsel has exhibited substantial diligence, professional confidence and has acted in
good faith to conform his or her conduct in accordance with the rule, but as a result

of some minor neglect, compliance was not achieved.

16

Id. at 920.

17

Here, Barnes' counsel asserts that he exercised substantial diligence by making

affirmative efforts to comply with Fed.R.App.P. 4(a)(1). However, the only
explanation counsel assigns for not filing notice of appeal on time is that he
miscalculated the time requirements of Rule 4(a). Calculating time deadlines in
the context of the demands of trial practice is routine and ordinary. "Most trial
lawyers know that meeting time deadlines is a part of what their practice is all
about." Marsh, 873 F.2d at 131. Mistakes arising from such calculations are not
of the "unique" or "extraordinary" variety envisioned by our interpretation of
Rule 4(a). Indeed, miscalculating the time for filing is among the most ordinary
types of neglect. If we were to weaken this circuit's present analysis of Rule
4(a) and hold that the instant circumstances constitute "excusable neglect," the
result would be an increase in the manufacture of excuses incapable of our
verification. In the absence of unique underlying circumstances that impel a
miscalculation, there is no way to verify a lawyer's naked representation that he
or she miscalculated time requirements. Because Barnes' counsel has not
demonstrated "excusable neglect," we hold that the district court improperly
granted an extension of time. We, therefore, dismiss Barnes' cross-appeal.

18

The effect of our dismissal of the cross-appeal is that the issues raised in the
cross-appeal are regarded, for the purposes of defendants' appeals, as correctly
resolved by the district court. Accordingly, we turn to analysis of the off-thetop allocation method with the assumption that the mobile van program does
not otherwise offend the Constitution. Our only concern is the manner in which
the Board disbursed the funds and whether the resulting allocation of funds to
private school children violated the Constitution.

19

The district court found that "the proper test for evaluating off-the-top
allocation is whether the cost of providing services to students from parochial
schools is 'so grossly disproportionate' to the cost of providing services to
students of public schools that the method used confers a direct benefit to
sectarian students." The court derived this test from the First Circuit's decision
in Members of Jamestown School Committee v. Schmidt, 699 F.2d 1, 9-10 (1st
Cir.), cert. denied, 464 U.S. 851, 104 S.Ct. 162, 78 L.Ed.2d 148 (1983). Under
the "grossly disproportionate test," a court examines whether the cost of
providing services to parochial students is "so grossly disproportionate" to the
cost of providing comparable services to public students that the provision of
services to the public students is merely a ruse to confer a direct benefit on the
church-affiliated private schools. See Schmidt, 699 F.2d at 10.

20

Applying the "grossly disproportionate test" to the facts of this case, the district
court concluded that the use of the off-the-top allocation method in the 1988-89
school year reduced the amount of funds available for public students by over
$187,000 and, therefore, directly benefited the parochial students at the expense
of the public school students. The district court noted that the off-the-top
method resulted in only a small per capita reduction in the amount of funds
available to each public student ($17 reduction); nonetheless, the court found
that the total reduction of more than $187,000 in funds was unconstitutional. In
its analysis, the district court put great emphasis on the use of the "grossly
disproportionate test" in Pulido v. Cavazos, 728 F.Supp. 574, 585
(W.D.Mo.1989), rev'd, 934 F.2d 912 (8th Cir.1991). The circuit court in
Pulido, however, reversed the district court after finding the district court
improperly applied the "grossly disproportionate test." 934 F.2d at 912.

21

We find that the district court's decision to apply the "grossly disproportionate
test" was correct. However, we reverse the district court's actual application of
the test to the facts. As we discuss below, we find that the court's analysis was
fundamentally flawed, resulting in an improper finding of disproportionality.

22

We begin our analysis with a brief recitation of the legal framework of this
Establishment Clause problem. The standard test for an Establishment Clause
problem is the three-part test first articulated in Lemon v. Kurtzman, 403 U.S.
602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). A statute or governmental action
comports with the Establishment Clause of the First Amendment if (1) it has a
secular purpose, (2) its principal or primary effect neither advances nor inhibits
religion, and (3) it does not foster excessive government entanglement with
religion. Id. at 612-13, 91 S.Ct. at 2111; see also County of Allegheny v.
American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109
S.Ct. 3086, 106 L.Ed.2d 472 (1989). Barnes has not placed in issue the
"excessive entanglement" prong of the Lemon test; therefore, we do not address
this issue in our analysis today. In addition, Barnes' failure to mention a
challenge to the purpose of the off-the-top allocation method in her amended
complaint before the district court renders our consideration of such a challenge
inappropriate in this court. As already noted, our sole concern today is the
propriety of the off-the-top allocation of funds, which implicates the second
prong of Lemon.

23

The Lemon test has received criticism from virtually every corner and we add
our voices to those who profess confusion and frustration with Lemon's
analytical framework. See, e.g., Harris v. City of Zion, 927 F.2d 1401, 1419
(7th Cir.1991) (J. Easterbrook, dissenting); Board of Education of the City of
Chicago v. Sanders, slip op. no. 90-C-3063 (N.D.Ill. May 15, 1991); Chopko,

"Religious Access to Public Programs and Governmental Funding," 60

Geo.Wash.L.Rev. 645, 654 (1992) (author calls this the "aptly named Lemon
test"). However, we find it unnecessary to further cloud the already murky
waters of Lemon analysis because existing case law addresses the precise issue
presented by the instant appeal.
24

Several courts have specifically addressed the off-the-top method of allocation

and found this form of disbursing Chapter 1 funds does not violate the
Establishment Clause. See Pulido, 934 F.2d at 912; Schmidt, 699 F.2d at 1;
Walker v. San Francisco Unified School District, 761 F.Supp. 1463
(N.D.Cal.1991); Sanders, slip op. at 26 n. 14. Some courts have utilized the
"grossly disproportionate test" in their analysis; others have indicated that if
appropriate facts are ascertainable on review, application of this test is
appropriate. See Schmidt, 699 F.2d at 9-10 ("grossly disproportionate test"
inapplicable because the evidence on cost was incomplete; the court indicated
the test would not be inappropriate under other circumstances); Walker, at 1472
(Felton costs of $368,000 against a total Chapter 1 budget of more than
$6,000,000 or 5% was not unconstitutional); Sanders, slip op. at 26 n. 14
("Even if we were to join the other district courts to examine the effects of the
provision on services to public school students under the 'grossly
disproportionate' analysis, we would not be quick to find that the disparity
clearly flunks the test."). Compare with Pulido, 934 F.2d at 926 (cautioning
against "comparison of per-pupil expenditures" and finding the district court's
application of the "grossly disproportionate test" in striking down of the offthe-top method was improper).

25

Various principles, which are pertinent to our analysis, are announced in these
recent Establishment Clause cases. The Constitution does not require absolute
equality of expenditures between parochial and public schools:

26 do not read the "common to all" language [in prior Court analysis] to require
We
absolute equality of access or expenditure, either statewide, taking the busing
program as a whole, or district-by-district in each of the program's inter- and intradistrict parts. We do, however, read this language to limit the degree of disparity the
Constitution will permit.
******
27
28

Just as important, the relative costs per-student of sectarian and public student
busing must remain roughly proportional.

29

Schmidt, 699 F.2d at 9. See also Pulido, 934 F.2d at 925. Indeed, the key

concern is that both public and private students receive "comparable services."
To properly insure "comparable services" are provided for all students,
permissible differences in expenditures will, at times, necessarily result.
Wheeler v. Barnes, 417 U.S. 402, 421-22, 94 S.Ct. 2274, 2285-86, 41 L.Ed.2d
159 (1974). Such differences might even mean that parochial students will
receive more money per capita than public school students because of the legal
requirement that both public and private students receive "comparable
services." Barrera v. Wheeler, 531 F.2d 402, 406-07 (8th Cir.1976); see also
Schmidt, 699 F.2d at 10 n. 7. School boards may, of course, exceed
constitutional limits in their method of allocating funds. For example, a
constitutional violation may occur where the funds or services provided by the
school board so benefit the private school students that the plan is " 'merely a
ruse' " to confer such benefits on religiously-affiliated schools. See Schmidt,
699 F.2d at 10 (quoting Springfield School District v. Pennsylvania Department
of Education, 483 Pa. 539, 558, 397 A.2d 1154, 1164 n. 9, appeal dismissed
sub nom. School District of Pittsburgh v. Pennsylvania Department of
Education, 443 U.S. 901, 99 S.Ct. 3091, 61 L.Ed.2d 869 (1979)). Also, a
constitutional violation may occur where expenditures on behalf of parochial
students become "so grossly disproportionate" in comparison to expenditures
on behalf of public students that the disproportionateness leads to political
divisiveness along religious lines. Id. at 10. However, to "render cost
differences constitutionally significant, there must not only be divisiveness; the
objective disparity must also be palpable." Id. at 10 n. 8.
30

Here, the district court found that "it is apparent that use of the off-the-top
method for leasing the mobile vans reduces the amount of funds available for
public school students by over $187,000." The court concluded that because the
off-the-top method of allocation "directly benefits private school students at the
expense of public school students," this constituted a violation of the
Establishment Clause under the "grossly disproportionate test." Applying the
principles we have just discussed, however, we reach a contrary result.

31

Without question, the statute at issue here is facially neutral--Chapter 1 funds

are available to educate both public and private school students. The off-the-top
allocation method applies to all administrative expenses, not just those
associated with educating private school students. In addition, the 1988-1989
Chapter 1 program in Jefferson County benefitted many more public school
children than private school children--11,260 public school children were
served as compared to 510 private school children. As we noted above, the
precise figure for the total amount of Chapter 1 funds disbursed in the 19881989 academic year is unavailable. However, based on other reliable figures
found by the district court, we find the maximum amount of funds spent only

on parochial Chapter 1 students to fund the van-leasing program comprised

2.7% of the total amount of Chapter 1 funds.5 In other words, public students
were deprived of 2.7% of the total amount of Chapter 1 funds which they
would otherwise have received were it not for the funding of the van program.6
We do not consider this small disparity in expenditures between public and
parochial students to constitute a constitutional violation under the "grossly
disproportionate test." Indeed, in our view this marginal disparity in
expenditures was mandated by the requirement that "comparable services" are
made available to both public and parochial students. See Pulido, 934 F.2d at
912 (statute not unconstitutional merely because it spends more money on
parochial students than public students); Schmidt, 699 F.2d at 9 (absolute
equality of expenditures not required); Walker, 761 F.Supp. at 1463 (Felton
costs at 5% of budget would not be considered a ruse to provide a direct benefit
to the parochial schools). Accordingly, we find it inappropriate to invalidate the
off-the-top method of allocation under the present circumstances using the
"grossly disproportionate test." In reaching our conclusion, we would also
emphasize that we are particularly troubled by the district court's ability to
reach an opposite result and find "gross disproportionality" when the district
court considered only the naked sum of $187,000. Unless the district court
compares that number to another number, i.e., the total amount of funds under
Chapter 1, the district court's use of $187,000 in its analysis is absolutely bereft
of any independent legal significance.
32

Beyond the technical flaws in the district court's holding, we also note two
philosophical problems with the court's analysis. First, the district court, as well
as Barnes, improperly focuses on the provision of the mobile classrooms as the
"benefit" of the Chapter 1 program. Instead, the true benefit of this program is
the provision of remedial education services to poor children desperately in
need of such services. As the court in Walker observed

33 mobile classrooms are just a means of providing these services. In fact, if the
The
costs of the mobile units were deducted only from the portion of funds earmarked
for children attending parochial schools, those children would be receiving
substantially less "educational" services than were the children in the public schools.
This would be in violation of Chapter 1 itself, which requires that the services
available to children be comparable, a provision explicitly upheld in Wheeler v.
Barrera, 417 U.S. 402 [94 S.Ct. 2274, 41 L.Ed.2d 159] (1974).
34

761 F.Supp. at 1471-72. Secondly, we note Barnes' inability to explain how the
off-the-top allocation method violates the Establishment Clause when used to
fund the lease of mobile vans, but not when used to fund the additional
expenses of providing Chapter 1 services to private school students in public

school facilities. At oral argument, plaintiff's counsel conceded that providing

Chapter 1 services to private school students in public schools would not violate
the Establishment Clause. However, just as providing Chapter 1 services in
mobile vans requires "non-instructional" or administrative expenditures--i.e., to
lease the mobile vans--providing Chapter 1 services to private school students
in the public schools also requires administrative expenditures. Indeed, under
the latter scenario, public schools might be forced to build additional
classrooms and that would, at the very least, result in expenses associated with
planning and scheduling. These expenses would be taken off-the-top of the
Chapter 1 grant in much the same fashion as similar expenses associated with
providing Chapter 1 services to public school students are taken off-the-top.
35

In summation, we find the Board's off-the-top allocation of Chapter 1 funds

constitutional. We emphasize, however, that we are not attempting to draw a
bright-line rule today by way of utilization of the "grossly disproportional test."
At some point a school board's allocation of funds off-the-top might constitute
a violation of the Establishment Clause. We will not conjecture at this time,
however, the precise point at which such a violation may occur. As the court
stated in Jamestown, 699 F.2d at 10:

36 of these limits, we intimate no views. Nor do we suggest a fixed proportion or

Short
a dollar or mile limit. [footnote omitted] The balance is as much qualitative as
quantitative, and will depend on the facts and circumstances of the case.
37

Accordingly, we limit our holding that there is no violation of the

Establishment Clause to the facts herein.

38

For the reasons stated above, Barnes' cross-appeal is dismissed and the order of
the district court is reversed to the extent that it holds that the off-the-top
allocation method applied under the present facts violates the Establishment
Clause. The remainder of the district court decision is affirmed.

The Honorable Thomas A. Wiseman, Jr., Chief United States District Judge for
the Middle District of Tennessee, sitting by designation

Cavazos has since resigned as Secretary of the United States Department of

Education and been replaced by Ted Sanders

Effective July 1, 1988, the Augustus F. Hawkins-Robert T. Stafford

Elementary and Secondary School Improvement Amendments of 1988 repealed
the predecessor to Chapter 1. See Pub.L. No. 100-297, 102 Stat. 130 (1988).

However, as part of the same legislation, Congress enacted a similar program

as Part A of Chapter 1 of Title I, recodified as 20 U.S.C. 2701 et seq. With
respect to the participation of eligible private school children in the Chapter 1
program, the statutory provisions are essentially identical. Compare 20 U.S.C.
3806 (1982) with 20 U.S.C. 2727 (West 1990)
3

As part of the 1988 amendments to the Chapter 1 program, Congress

authorized between $30 million and $40 million per year to pay for the capital
expenses associated with compliance with Felton. Specifically, Congress
authorizes the payment of capital expenses "when without such funds, services
to private school children would have been or have been reduced or would be
reduced or adversely affected." 20 U.S.C. 2727(d)(3)

This figure was based on the number of students covered by the plan (11,700)
multiplied by the cost of instructional services (about $600). To get the
estimated total Chapter 1 funds we add the resulting number ($7,020,000) to
the separate cost of providing the vans ($194,181)

We agree with the court in Jamestown, 699 F.2d at 11, that "[w]ithout precise
figures on the relevant costs, the effect of the statute ... is conjectural."
Nonetheless, sufficient figures exist in this case to enable a reliable
determination. See supra note 5
$ 194,000
---------$7,214,181

(cost of vans)
(total Ch. 1 funds)

=
2.7%
(% of funds spent on van
program)

This figure is calculated as follows:

Step No. 1:

(private students)
510

----------11,190

(public students)

4.3%
(ratio of private studen
students)

$328,796 (4.3% x $7,214,181)

$6,885,385
(95.7% x $7,214,181)

Step No. 2:
Proportion of Chapter 1
funds to which private
students are entitled
Proportion of Chapter 1
funds to which public
students are entitled

Step No. 3:
$ 194,000
(cost of vans)
x .9544236 (% of funds allocable to public students)
------------------$ 185,158 = (money taken away from public students
that would have been the public
students' under a system not using an
off-the-top method of allocation)

Step No. 4:
185,158
---------$6,885,385

2.7%
(proportionate amount of funds spent
on vans at public student expense)